Story Highlights

MONTPELIER – Vermont law enforcement is concerned about the increase in detected cases of impaired drivers with regulated drugs, including marijuana, as they see deaths due to impairment rise.

Proponents of marijuana and civil libertarians are equally concerned about proposed legislation to allow police to request a new roadside drug testing process that uses a saliva swab.

The saliva swab could help detect other possible drugs categories, including depressants, stimulants and hallucinogens.

The two sides hope they can reach common ground as the Vermont House Transportation Committee grapples this week with a bill designed to add a new public safety dimension in getting drug-impaired drivers off state roads.

The bill would allow police to request a saliva test much like when they seek a breath test in alcohol cases. Using that saliva test result with other information gathered during the investigation could lead an officer to seek a blood test that could be used in a criminal prosecution.

The biggest question is timing, said Ted Minall, the former chief of the Governor's Highway Safety Program in Vermont.

"It's coming. The question is when," said Minall, who is now a law enforcement liaison contractor with the National Highway Safety Traffic Administration for New England.

The 8-page legislative bill, H-228, appeared headed for possible approval by the transportation committee last week, but the brakes were applied.

Rep. Patrick Brennan, R-Colchester, the committee chair, said new questions were surfacing that needed to be addressed. He said the initial thought was to tack the legislation onto the annual Department of Motor Vehicle miscellaneous bill, but he did not want to hold it up.

"It's a little more involved. We owe it to the public to do it right the first time," Brennan said about H-228. The committee members agreed to postpone action.

The Transportation Committee noted the saliva tests are approved in 14 states and numerous foreign countries, but it was unclear to what extent it is used by each.

Allen Gilbert, executive director of the Vermont chapter of the ACLU, said he finds it odd that a year ago there was discussion in the Vermont legislature about testing, but it was deemed unreliable.

"Now a year later, suddenly there is a push to approve the testing," Gilbert said.

"Last year we were far away and this year we are there," said Gilbert, who expects to testify this week before the transportation committee.

Vermont State Police are experimenting with two kinds of saliva testing machines, Lt. John Flannigan said. The manufacturers have loaned three of each kind to Vermont, said Flannigan, the station commander in St. Albans.

Flannigan, who previously was assigned to the department's traffic safety division, said he has considerable interest in drug testing and has studied saliva testing in other states and countries.

Rep. Chris Pearson, P-Burlington, said he has a few concerns including what is considered a detectable level for each drug.

"We don't know what is a safe level," he said.

Pearson and others have questioned whether a properly prescribed drug could still show up on a test days or weeks later when a saliva test is requested.

"It is the timing," Pearson said.

The bill as drafted notes, "Any saliva test administered under this section shall be used only for the limited purpose of determining the presence of a drug in the person's body."

The bill also talks about "any detectable amount of any regulated drug" as defined by state law.

Defendants would be allowed to assert "as an affirmative defense that he or she had the drug in his or her blood as a result of taking medication pursuant to a valid prescription," the bill said.

"So the accuracy of the device has to be perfect, and people have to realize that any presence of the drugs being tested could result in a DUI," Gilbert said.

Lt. Flannigan said the technology is catching up.

"We have had the ability on the road to test for 30 years at least," he said. It is now time to have a process for drugs, he said.

Drug recognition

Minall, former chief of the Highway Safety Program, throughout his law enforcement career has always been interested in drug-related crimes and impaired drivers. He ended his 24-year career with New York City Police as a lieutenant in the narcotics division.

Vermont saw in 2014 "an alarming increase in the number of impaired driving fatalities," said Minall, who also spent four years as Vergennes police chief.

Nine drivers involved in fatal crashes last year in Vermont had evidence of marijuana in their system, he said. It came as Vermont recorded its lowest number of highway fatalities in more than 60 years.

During 2014 only six drivers in highway fatalities had evidence of alcohol.

Nationwide the number of drivers with marijuana in their system when killed in a car crash continues to grow.

A 1999 study showed marijuana was in 4.2 percent of the drivers killed in crashes, while it was 12.2 percent in 2010, according to reports discussed at the "Drug Driving Summit" in Montpelier in 2014.

The increase in drugged driving has forced Vermont and other states to increase the number of police officers certified as Drug Recognition Experts, or DREs, Minall said.

There are about three dozen, state, county and local officers trained as DREs sprinkled throughout Vermont.

More than 600 DRE enforcement evaluations were done between 2005 and 2014. The DRE officers often get called to accident scenes and traffic stops when other police officers have reason to believe a driver is impaired by something besides alcohol.

There are some areas, including the Northeast Kingdom and Central Vermont, that have only a couple of certified DREs. That can mean there are some work shifts when no DREs are on-duty. Some officers make themselves available even when off-duty.

To become certified, the DREs had to complete about 80 hours of intensive training about how to detect non-alcohol drug impairment and also pass a series of tests, Minall said.

The impaired driver may have no signs or evidence of alcohol in their system, but their conduct makes them candidates for a blood test to determine what drugs may be in their system.

Drivers suspected of being impaired by alcohol are often asked on the roadside to perform a series of dexterity exercises and may be requested to take a roadside breath test known as an Alco-Sensor. Depending on the outcome, the driver may be asked to take a court-approved test that will retain a breath sample for independent testing.

A similar process would be used for drug impairment cases, except a saliva test would be used along with the roadside screening. Depending on the findings a blood test could be requested.

Record low fatals

Last year 44 people were killed in Vermont highway crashes, a record low since NHTSA has been keeping these numbers.

It also is the second lowest annual total in the past 90 years, according to state figures. Vermont had 28 deaths in 1944 when there were restrictions on driving, limited cars on the road and a lower number of drivers available due to World War II.

Minall attributes the dramatic reduction in traffic fatalities in recent years to several factors involving public outreach and education and the careful use of data to deploy impaired driving resources.